https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12810

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **KISII HIGH COURT** **HCCRA NO. E014 OF 2025** **JUSTINE NYABUTO NYAMBOJE………………………….APPLICANT** **VS** **REPUBLIC……………………….…………………………RESPONDENT** ***(Being an appeal from the Sentence in Etago Criminal Case Number E072 of 2025 delivered on 8th April 2025 by Hon. V M Moguche RM in the Chief Magistrate’s Court at Etago)*** **JUDGMENT** **Introduction** 1. The Appellant, **Justine Nyabuto Nyamboche** was on **8th April 2025** convicted of the offence of malicious damage to property contrary to *Section 339(1)* of the *Penal Code* in Etago Magistrate Criminal Case No. E072 of 2025. The particulars of the offence are that on **2nd March 2025** at Emesa Sub Location in GuchaSouth Sub County, within Kisii County willfully and unlawfully damaged the windscreen of motorvehicle Reg No. KBL 384N valued at Kshs 12,000 property of Christopher Obaiwa. The Appellant on **8th April 2025** changed his plea and entered a plea of guilt, was thereafter convicted and sentenced to serve 2 years imprisonment. 2. Aggrieved by sentence, the Appellant pursuant to the leave granted by the honourable court lodged a Petition of Appeal dated **28th May 2025** raising an appeal on the following grounds**;** 1. The learned trial magistrate never considered the age and indolence of the applicant and award a non-custodial sentence. 2. The learned trial magistrate did not notice that the Appellant was misled by the cell offenders to admit the charge and ask for a non-custodial sentence. 3. That the Hon. Judge be pleased to suspend the sentence and free the accused, who is a young man and unmarried, to enable him have a family. 4. That in the alternative, the Hon. Judge be pleased to award a non-custodial sentence and the young man be placed under the supervision of a probation officer, since his mother died recently. 3. The Appellant urged this court to allow the appeal, set aside the sentence freeing the Appellant. In the alternative the court grants him a non-custodial sentence. 4. On **21st May 2026** parties took directions on hearing of the appeal which was to be canvassed by way of written submissions. The Appellant filed his written submissions dated **20th May 2026**. The Respondent was yet to file their submissions, hence granted 14 days to file their written submissions. None was filed as at the time of writing this judgement. **Analysis and Determination** 1. This court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court. 2. The particulars are that, on **2nd March 2025**, the complainant, Christopher Obaiwa, was driving motor vehicle registration No. **KBL 384N,** with passengers on board, at Mochengo Centre. The Appellant, Justine Nyabuto Nyamboche, had a bottle of alcohol which he threw and which hit the motor vehicle's windscreen, breaking it. The Appellant was arrested while drunk. The value of the windscreen was placed at Kshs. 12,000. Photographs of the damaged windscreen were produced as an exhibit (PEXH1) 3. The Appellant admitted the charges as framed in the charged sheet the particulars were equally confirmed to be true, thus a conviction on his on plea of quilt, mitigation followed and a sentence 2 years imprisonment. 4. The Appellant submit that the two-year custodial sentence imposed was manifestly harsh and excessive. Relying on **Wanjema v. Republic (1971) EA 493** and **Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR)** for the principle that an appellate court may interfere with sentence where a material factor was overlooked or the sentence is manifestly excessive, counsel contends that the trial magistrate failed to adequately weigh key mitigating factors. 5. The Appellant faults the trial court for imposing a custodial term without calling for a pre-sentence or probation report, and for placing undue weight on the prevalence of the offence over individualized sentencing. The Appellant prays that the sentence be set aside and substituted with a non-custodial sentence, probation, or community service 6. The Court in ***Wanjema v. Republic (1971) EA 493***, rightly so, laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. 7. In this present case, while the sentence imposed was lawful, this Court is entitled to consider whether in light of the Appellant’s compelling mitigation and the objectives of sentencing, continued incarceration remains necessary. The Appellant has already served slightly over a year, has expressed remorse, indicated his mother died and he has a family that depends on him, are all material considerations bearing on rehabilitation and reintegration. 8. The *Sentencing Policy Guidelines 2023* equally provides for objectives in sentencing to include deterrence and retribution on one end and on the other part restoration and rehabilitation. A sentence ought to be proportionate to the offending conduct, noting that the Appellant has served over a year in custodial sentence. 9. In the totality of circumstances, I am satisfied the objectives of punishment have been substantially met and the interest of justice warrants interference with the unexpired portion of the sentence. **Disposition** 1. Consequently, the appeal against the sentence succeeds, the sentence of 2 years imprisonment is hereby set aside and substituted with a sentence equivalent to the period already served. 2. As such, the Appellant shall be released forthwith. **JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 7TH DAY OF AUGUST 2026** **ANNE M. OKUTOYI** **JUDGE** In the presence of: **Mr. Sagwe for the Appellant.** **Mr. Njeru for the State.** **Ms. Mokeira Court Assistant.**